Board Nomination and Non-Liability Agreement between Summus, Inc. and LAP Summus Holdings LLC (November 18, 2005)

Summary

This agreement is between Summus, Inc. and LAP Summus Holdings LLC. Summus agrees to promptly appoint a person designated by LAP Summus Holdings LLC to its Board of Directors and to use best efforts to keep that person on the board and its committees as long as LAP Summus Holdings LLC holds certain securities. The agreement also states that LAP Summus Holdings LLC is not liable for conflicts of interest arising from its investments in competing companies, except in cases of breach of confidentiality or other agreements with Summus.

EX-4.10 11 ex4-10.txt EXHIBIT 4.10 EXHIBIT 4.10 SUMMUS [LOGO] 434 Fayetteville Street, Suite 600, Raleigh, NC 27601 November 18, 2005 LAP Summus Holdings LLC c/o Liberty Associated Partners, L.P. 3 Bala Plaza East, Suite 502 Bala Cynwyd, PA 19004 Attn.: Scott G. Bruce We refer to the Securities Purchase Agreement, the Security Agreement and the Registration Rights Agreement each dated as of the date hereof among you, us and the other parties referenced therein as well as to the 6% Senior Secured Debenture (the "Debenture") and the Stock Purchase Warrants granted by us to you on the date hereof (all these documents together the "Transaction Documents"). As an inducement to your participation in the transactions contemplated by the Transaction Documents, we hereby acknowledge and agree that we will promptly (and in any event within ten days) on your written request name any person you designate to our Board of Directors, and we hereby agree that we will use our best efforts to cause such person (or any substitute person you designate) to be elected to and thereafter remain on our Board of Directors for such period of time as you own the Debenture or own or have the right to acquire at least ten percent of the shares to which you immediately after issuance of the Debenture have the right to acquire under the warrants issued in connection with the Debenture. Such designee shall also be nominated to any executive (or comparable) committee of the board, and any other committee that the board determines in its judgement and will be promptly furnished with all information provided by the Company to the other members of the Board of Directors or such committee. In addition, such designee shall have notice of, and the right to observe meetings of any other committees of the board, and shall be promptly furnished with all information provided to members of such other committees. The failure to be in compliance with this undertaking will constitute a "default" under any of the Transaction Agreements. We further acknowledge and agree that LAP Summus Holdings, LLC and its partners, affiliates and affiliates of its partners engage in a wide variety of activities and have investments in many other companies, some of which may be competitive with our business. LAP Summus Holdings, LLC shall not be liable for any claim arising out of, related to or based upon, (a) the investment by LAP Summus Holdings, LLC in any Summus, Inc. main office: 919 ###-###-#### o toll free: 877 ###-###-#### o fax: 919 ###-###-#### www.summus.com entity competitive to Summus, Inc. or (b) actions taken by any partner, officer or other representative of LAP Summus Holdings, LLC to assist any such competitive company, whether or not such action was taken as a board member of such competitive company or otherwise, and whether or not such action has a detrimental effect on Summus, Inc. The foregoing limitation shall not apply in the event that such claim arises out of or relates to a breach by LAP Summus Holdings, LLC of any agreement with us, including the agreement not to disclose confidential information of Summus, Inc. Very truly yours, /s/ Donald T. Locke Donald T. Locke Chief Financial Officer